Separation

About Separation in Canada

The realm of divorce in Ontario is surrounded by many myths and beliefs. First of all, there is nothing called as ‘filing for legal separation’. If a couple is living separate and apart, you are separated. Also, you cannot be considered automatically divorced legally after many years of separation. Thus, even if you are separated for decades and have not applied for divorce, you will be considered legally separated.

In Canada, there are primarily three grounds for divorce:

  • living ‘separate and apart’ (* for a period of exceeding one year)
  • adultery (cheating)
  • mental or physical cruelty

* ’Living separate and apart’ can mean many things. It does not just imply ‘physical separation’. A couple may be living separately but essentially sharing the same roof due to many reasons including mortgage sharing, children etc. In case you are filing divorce based on separation, there has to be a minimum one year separation period before the divorce can be filed. The second filing also cannot be made prior to one year of living separately. The filing can be done after your separation but the divorce will not be finalized until the period of separation reaches one year.

Separation Agreements

Couples seeking a separation are generally advised to settle their matters amicably before they seek the involvement of court. Every lawyer worth his salt would advise the couples to avoid the legal debacle. The proceedings of the court can be expensive and also take a considerable amount of time. Separation is an important step in a couple’s life and can have major consequences. This can be more crucial if children are involved. Normally, you have to honor the separation agreement. So, it is advised that your trusted family lawyer is involved in drafting the separation agreement.

The law requires that the separation agreement be drafted in the court. Even if the two of you have settled the matter amicably and agreed to certain terms, it is advised to get a separation agreement signed. It should clearly indicate all the terms that you agreed on. This helps prove later that the two of you have solved the separation issue. In case one spouse dishonors the initial terms and conditions, you have the legally signed separation agreement as the proof.

The written separation agreement must include many aspects that are crucial to the legal structure of the divorce itself. These include:

  • Date of separation
  • Children issues
  • Which parent will have the custody?
  • What are the access rights of the other parent
  • The amount of child support
  • Time limit of child support
  • Issues pertaining to spouse support such as alimony, who will pay what amount etc.
  • When will the spouse support end?

Property Issues

Issues related to the property are also important in the divorce. It must be clearly defined as to who gets what property. If the house in paid by combined mortgage, who pays the mortgage now. Who has the right to sell the property? In case of a sale, who gets what portion of the sale proceeds? All these have to be clearly stated right in the beginning.

Debts

Issues relating to various debts and mortgages can also be included in the agreement. All the loans such as credit card debt, mortgage debt, car loan, education loan can be included in the agreement.

Drafting your Separation Agreement

It is highly advised that your lawyers draft the separation agreement with complete consultation. Ideally, one single lawyer must draft the separation agreement. The other spouse can then proceed to get it checked from his/her lawyer. The independent legal advice ensures that no important clause is left. There can be issues where both parties cannot come to an agreement. In such a case, you can use a mediator to settle matters amicably. A mediator can further direct the couple to get the agreement independently verified. Online legal services can also be consulted for a quick verification of the separation agreements.